MISC. CRIMINAL APPLICATION NO. 100 OF 2002
JOSEPH KOTOKWA..........................................1ST APPLICANT
ALFRED KUMPHASA......................................2ND APPLICANT
CORAM: HON. JUSTICE A.C. CHIPETA
The two Applicants herein are jointly under trial in the Second Grade
Magistrate’s Court at Nsanje. This is in Criminal Case No. 86 of
2002. The charges they are facing are conspiracy to commit a felony
contrary to Section 404 of the Penal Code in the first count and Theft
by Public Servant relating to a sum of K113,900.00 in the second count.
At the hearing of this application the two Applicants were represented
by Mr Mzumala, of Counsel. The Respondent, which is the State, was
represented by Mr Kamwambe, the Chief State Advocate. It is the complaint
of the Applicants in this case that the sum demanded by the trial court
as a deposit as one of the conditions for their release on bail is too
excessive and that they are unable to raise such money. Referring
to Section 118(2) of the Criminal Procedure and Evidence Code Mr Mzumara
argued for a reduction of this figure in the light of the
The State indicated that it has no objection to the present application. Mr Kamwambe actually expanded on the application of the Applicants by further referring to Section 121(1) of the Criminal Procedure and Evidence Code and to the Bail (Guidelines)Act to highlight the uniform stand of the law on the point that the amount of bail ought not to be excessive.
At the time of the hearing of this matter the lower court’s file was
not in. I felt it would be unfair to determine the application herein
without examining the record of the case in the lower court and assessing
the circumstances in which the lower court issued the order now being questioned.
The record in issue has since been brought to my attention and I have duly
Noting that there are other conditions, such as frequent reporting to police, and surrender of travel documents, which the lower court prescribed over and above the deposit herein, I think it is only fair that the sum to be deposited be reduced to a more realistic level. In matters of bail the sum promised on bond or the sum demanded as deposit, as I understand it, is never meant to stand in as a possible replacement for the money or value of property specified in the applicable charge. Rather such sum is merely supposed to be high enough to induce Applicant to fear its loss should he fail to come to trial. In this case I think a K5,000.00 deposit for each of the accused persons will suffice when all the other conditions remain in place. I accordingly order that in lieu of the K45,000.00 the lower court ordered the Applicants to deposit they now only deposit K5,000.00 each in court as security for their attendance at trial. To this extent the conditions of their bail are varied and the application herein therefore succeeds.
Made in Chambers this 13th day of June, 2002 at Blantyre.